Court File and Parties

COURT FILE NO.: CV-20-00642921 DATE: 20220322 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SURENDRARAJ NAVARATNARAJAH, Plaintiff – and – FSB GROUP LTD., FSB INSURANCE LTD. AND FSB COMMERCIAL LTD., Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Andrew Monkhouse and Alexandra Monkhouse, for the Plaintiff Stephen Gleave and Richelle Pollard, for the Defendants

HEARD: March 21, 2022

Case Conference

[1] Counsel met with me to go over a number of issues that have arisen since certification of this class action.

I. Use of the Defendants’ corporate logo

[2] Defendants’ counsel expressed concern about Plaintiff’s counsels’ use of the Defendant’s corporate logo on its web page for the class action. The Defendants’ position is that the logo is their intellectual property and its unconsented-to use by Plaintiff’s counsel is a trademark violation.

[3] Plaintiff’s counsel respond that they have done a trademark search and that the corporate logo – a stylized version of the corporate name in a blue and white rectangle – has not been registered by the Defendants. The Plaintiff’s position is that the Defendants do not want the Plaintiff’s side to use the corporate name at all in identifying the target of the class action, and that eliminating reference to the name will make the website uninformative to the class members.

[4] I see no indication that Defendants’ counsel want Plaintiff’s counsel to stop using the Defendants’ name altogether in advising the class about the progress of the action. That would be an impossible position for the Defendants to take. The Defendants’ corporate name is right in the style of cause. Of course Plaintiff’s counsel can refer to the Defendants by their corporate name.

[5] The Defendants have not brought a motion for trademark infringement and in the context of a case conference I do not intend to opine on whether the logo is or is not an enforceable trademark. That said, I do not know why Plaintiff’s counsel have to use the Defendants’ corporate logo. It has the potential to confuse the reader. Defendants’ counsel says, convincingly, that when one sees a web page with the company logo at the top, one assumes that it is something authorized by or formally issued by the company.

[6] There is no reason for Plaintiff’s counsel to communicate in this way. They can mention the Defendants’ company name in appropriate places just like anyone else would, using font and lettering that does not confuse the reader or subtly convey that this is somehow official communication from the Defendants.

II. Opt-out time

[7] Defendants’ counsel says that there is some confusion over how much time the class members have to opt out of the action.

[8] Schedule B of the certification Order says that the opt-out deadline is 120 days from the date that leave to appeal the certification motion is denied by the Divisional Court. That would put the outside opt-out date at March 24, 2022.

[9] Schedule C of the certification Order is the litigation plan. It says that the opt-out deadline is 120 days from the date that the approved notice is disseminated to the class. It apparently took some time for the Defendants to provide Plaintiff’s counsel with the class members’ mailing addresses, and so the notice was only sent out a week or so ago. That would put the outside opt-out date at sometime in early July 2022.

[10] Plaintiff’s counsel explains that they knew the addresses of some 20 class members, and that group was sent the notice in early January. Another roughly 60 class members were sent the notice by Canada Post last week, when Defendants’ counsel forwarded the balance of the addresses. Accordingly, a majority of the potential class members will have a very short opt-out period if the March 24th deadline is adhered to.

[11] Counsel for the Defendants concedes that a July deadline would be unusually long for at least a portion of the potential class. They propose a compromise date of April 3, 2022 as the outside date for opting out.

[12] Although there is no real principle on which the April 3rd proposal is based, it seems like a fair compromise. It gives sufficient time for people receiving the notice this past week to consider their position, while it does not give such a long opt-out period that people who received the notice in January will lose interest.

[13] I am prepared to accept April 3, 2022 as the revised opt-out deadline and have told Plaintiff’s counsel to prepare and send out a notice to this effect to the entire class.

III. Defendants’ communications with class members

[14] Plaintiff’s counsel has indicated that there appear to be more than the usual number of class members who are opting outs of this action. They submit that this might be because the Defendants have been discussing the class action with class members on conference calls, and the class members fear reprisals from the Defendants if they do not opt out.

[15] I asked Plaintiff’s counsel how they know this, and they indicated that they have been advised by class members that the class action was one of a number of agenda items to be discussed on a conference call between the Defendants and the class members still working for them. But they also indicated that they do not know what was said on that call.

[16] I indicated to Plaintiff’s counsel that if there were actual evidence of a threatened reprisal against any class member by the Defendants that would be a matter to be taken seriously. However, in the absence of any such evidence the allegation of reprisal is just speculation.

[17] I will take this opportunity to point out that in my reasons for judgment in the certification motion, I indicated that it was entirely foreseeable that a large number of class members would opt out. This was not due to anything sinister being done by the Defendants, but rather was because the claim apparently only financially benefits a limited number of class members.

[18] Under the circumstances, an unusually large number of opt-outs does not suggest misconduct or threats being conveyed by the Defendants to the class. Rather, it reflects the nature of the claim and was always in the cards for this action.

IV. Counsel’s communication with my office

[19] I would request that counsel limit their email communication with my assistant to scheduling matters. If a case conference or hearing date is scheduled, a brief one or two line description of each of the agenda items to be covered would also be appropriate.

[20] Full-blown advocacy by email, on the other hand, is not encouraged. Motion materials and factums can be filed and uploaded to CaseLines in the usual way; but points of law or procedure should not be argued out by counsel over the email to my assistant.

Date: March 22, 2022 Morgan J.